United States: The Explosion Of Paid Sick Leave In New Jersey

The trend of municipalities in New Jersey enacting paid sick
leave ordinances continues. Littler previously reported on the
enactment of two such laws in Jersey City (effective January 24,
2014)1 and Newark (effective May 29, 2014).2
Since that time, an additional six municipalities in New Jersey
have passed paid sick leave laws including Passaic, East Orange,
Paterson, Irvington, Trenton and Montclair. For the most part, the
ordinances are consistent and generally model Newark's paid
sick leave law, which differs from the Jersey City sick leave
law.

Now, New Jersey is considering state-wide paid sick leave
legislation. On Monday, October 27, 2014, the New Jersey Assembly
Labor Committee voted 6-3 for a state-wide paid sick leave law.
Under the bill, employers with less than 10 employees would be
required to provide up to 40 hours of earned sick leave, while
employers with more than 10 employees would be required to provide
up to 72 hours. Notably, the bill as proposed would not preempt
more generous local laws. On December 15, 2014, the Assembly Budget
Committee voted in favor of the bill by 6-4. The next step for the
bill is a full vote in the Assembly, although indications from
current Assembly members are that substantial modifications will be
necessary before it is presented on the Assembly floor. A
corresponding bill was introduced in the New Jersey Senate in
January 2014 but has not advanced.

It appears that the White House is also jumping on the
bandwagon. On January 20, 2015 during his State of the Union
speech, President Obama requested Congress to pass a law that would
allow employees to earn up to seven paid sick days per year.

Effective Dates

Each of the local New Jersey paid sick leave laws takes effect
120 days after enactment:

Municipality

Effective Date

Passaic

December 31, 2014

East Orange

January 6, 2015

Paterson

January 7, 2015

Irvington

January 28, 2015

Trenton

March 4, 2015

Montclair

March 4, 2015

Covered Employers & Employees

The ordinances apply to all private employers regardless of
size, although the amount of paid sick leave time provided to
employees varies based upon the total number of employees. An
employee is eligible for paid sick leave if he or she works at
least 80 hours in a calendar year. Employees who are covered by a
collective bargaining agreement are permitted to clearly and
unambiguously waive the requirements of paid sick leave laws in
their collective bargaining agreement.3

Accrual, Advances, Caps, and Carry-Over

Beginning after the 90th calendar day of their employment,
employees accrue one hour of paid sick leave for every 30 hours of
work performed by the employee. For employers with 10 or more
employees, total paid sick time is capped at 40 hours per year. For
employers with 10 or less employees, paid sick time is capped at 24
hours per year. Employers of child care workers, home health
workers, and food service workers are required to provide 40 hours
per year – regardless of total number of employees. Exempt
employees are assumed to work 40 hours per week for purposes of
accrual under the ordinances.

Employees are permitted to carry over up to 40 hours of unused,
accrued sick time to the following year. However, even if time is
carried over from the previous year, employers are not required to
allow employees to use more than 40 hours of paid sick time in a
single calendar year. Moreover, if the employer pays the employees
for accrued, unused sick time at the end of the year, then it is
not required to carry the time over. Payment of accrued, unused
sick days is not required upon termination of
employment.

Employers with a paid leave policy (a "Paid Time Off"
or "PTO" policy) may continue to use such a policy in
lieu of a specific paid sick leave policy provided that
the paid leave granted pursuant to the policy is sufficient to meet
the total annual accrual requirement set forth in the ordinances.
Employees must be able to use leave under such a policy for the
same purposes and under the same conditions as allowed under the
paid sick leave law.

Permitted Uses

Employees can use sick time for the medical diagnosis, care or
treatment of their own or their family member's mental or
physical illness, injury, or health condition.4 There
are some additional circumstances when paid sick leave can be used
such as when an employee's place of business or the school or
day care of an employee's child is closed due to a public
health emergency, or if the employee must care for a family member
who has been officially quarantined due to exposure to a
communicable disease. Paid sick time may be used in increments of
less than one day at the employer's discretion.

Employee Notice and Documentation

The law allows employers to require reasonable advance notice of
an employee's use of paid sick time, if foreseeable. If the
leave is not foreseeable, the employer may require notice before
the beginning of the employee's work shift or work day, or as
soon as practicable in emergencies.

For sick time of more than three consecutive days (or three
consecutive instances, if used in increments less than one day), an
employer can require reasonable documentation signed by a
healthcare professional that the sick time has been used for a
covered purpose. An employer cannot require, however, that
documentation explain the nature of the illness. To the extent an
employer possesses the health information of an employee or his/her
family member, such information must be treated as confidential and
cannot be disclosed, except to the affected employee with his or
her permission.

Notice and Posting Requirements

Employers must provide individual written notice to each
employee about his or her rights under the ordinance at the time
employment commences (or as soon as practicable if the employee is
already employed as of the effective date of the ordinance).
Employers must also display a poster in a conspicuous place in each
business establishment where employees are employed containing
notice of the ordinance. The notice must be in English and any
other language that is the primary language of more than 10% of the
employer's work force.

Non-Retaliation and Penalty for Non-Compliance

Employers who violate the paid sick leave ordinance may be fined
up to $500 per day for each day in which a violation occurs, in
addition to restitution to the employee of any amount of paid sick
leave unlawfully withheld. Also, employers cannot retaliate against
any employee for exercising his/her rights under a paid sick leave
ordinance.

Recommendations

Employers operating in affected municipalities should:

Review and revise, if necessary, sick
leave policies and procedures to ensure they meet the
ordinances' requirements, including anti-retaliation
provisions.

Monitor the overseeing municipal
agency's public notices and website for template notices,
workplace posters, and trends with regard to enforcement.

Obtain posters and display them in a
conspicuous place.

Audit timekeeping, payroll, and
benefits systems to ensure they properly calculate, track, and
detail accrued and used sick time.

Train supervisory and managerial
employees, as well as human resources and payroll personnel, on the
ordinances' requirements.

Consider transitioning to a PTO or
Paid Time Off policy that encompasses a number of different types
of leaves, including paid sick leave.

3. If a collective bargaining agreement is already in
effect as of the effective date of the ordinance, the ordinance
shall not apply until the expiration of the current collective
bargaining agreement.

4. A "family member" includes a biological,
adopted, or foster child; stepchild or legal ward; a child of a
domestic partner; a child of a civil union partner; or a child to
whom the employee stands in loco parentis; a biological,
foster, stepparent, or adoptive parent or legal guardian of an
employee or an employee's spouse, domestic partner or civil
union partner or a person who stood in loco parentis when
the employee was a minor child; a person to whom the employee is
legally married under the laws of New Jersey or any other state or
with whom the employee has entered into a civil union; a
grandparent or spouse, civil union partner or domestic partner of a
grandparent; a grandchild; a domestic partner; or a
sibling.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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